Isham v. Ryan
2:16-cv-02918
D. Ariz.Jul 7, 2017Background
- Petitioner Michael Darrin Isham filed a federal habeas petition under 28 U.S.C. § 2254 challenging his conviction, asserting the prosecutor suppressed a videotape that would have been exculpatory (Brady claim) and that defense counsel failed to request it.
- The Magistrate Judge recommended dismissal of the petition as barred by AEDPA's one-year statute of limitations and recommended denial of a certificate of appealability (R&R).
- Isham objected, arguing the prosecution destroyed the videotape on October 15, 2015, and that the destruction constituted "newly discovered" evidence that reset the AEDPA limitations period under § 2244(d)(1)(D).
- The district court limited de novo review to the objectionable issue: whether the alleged destruction could serve as a new factual predicate to toll or restart the limitations period.
- Court found Isham knew of the videotape's existence on July 2, 2012 (well before his judgment became final on July 28, 2013), so the destruction in 2015 did not create a new factual predicate; the AEDPA limitations period ran from July 29, 2013 and expired July 29, 2014.
- The petition, filed August 22, 2016, was dismissed with prejudice as untimely; a certificate of appealability was denied under Rule 11 and Slack v. McDaniel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether destruction of the videotape in 2015 is a "factual predicate" that restarts AEDPA limitations under § 2244(d)(1)(D) | Destruction of the tape is newly discovered evidence and the factual predicate occurred on Oct 15, 2015, so limitations should run from that date | Petitioner knew of the tape's existence in 2012; destruction in 2015 is not a new factual predicate and does not restart limitations | Held: No. The factual predicate was discovery of the tape in 2012, so § 2244(d)(1)(D) does not apply and limitations ran from July 29, 2013 |
| Whether petitioner is entitled to statutory or equitable tolling to render the petition timely | Tolling should apply due to suppression/destruction and resulting inability to obtain evidence | No basis for statutory or equitable tolling; petitioner knew of the tape earlier and did not exercise due diligence | Held: No tolling. Petition untimely and must be dismissed |
| Whether the petition is barred by AEDPA's one-year statute of limitations | N/A (timeliness is the central issue) | AEDPA one-year period began after judgment became final and expired July 29, 2014 | Held: Petition filed Aug 22, 2016 was untimely and dismissed |
| Whether a certificate of appealability should issue | N/A | Dismissal is on plain procedural grounds; jurists of reason would not find it debatable | Held: COA denied under Rule 11 and Slack v. McDaniel |
Key Cases Cited
- United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (district court must review de novo those portions of a magistrate judge's report to which objections are made)
- Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (AEDPA accrual includes 90-day period to seek certiorari)
- Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999) (discussing certiorari period in AEDPA accrual calculus)
- Ford v. Gonzalez, 683 F.3d 1230 (9th Cir. 2012) (due diligence rule: accrual under § 2244(d)(1)(D) begins when claimant knows or could discover vital facts)
- United States v. Lockett, 919 F.2d 585 (9th Cir. 1990) ("newly discovered evidence" does not mean merely "newly available evidence")
- Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) (distinguishing knowledge of factual predicate from time to gather supporting evidence)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standards for issuing a certificate of appealability)